Does copyright end immediately after the minimum period mandated by the Berne Convention?

NoVarious formulas are used in UK legislation and generally the copyright term is either 70 or 50 years from the end of the calendar year in which a work was fixed. For literary, dramatic, musical or artistic works (including films) the copyright term is 70 years from the end of the calendar year in which the last remaining author of the work dies. If the author is unknown, copyright will last for 70 years from end of the calendar year in which the work was fixed. For sound recordings and broadcasts the copyright term is 50 years from the end of the calendar year in which the work was fixed, or, if the work is released within that time: 50 years from the end of the calendar year in which the work was first released. For typographical arrangement of published editions the copyright term is 25 years from the end of the calendar year in which the work was first published. For broadcasts and cable programmes the copyright terms is 50 years from the end of the calendar year in which the broadcast was made.

1988 Act

Are works that are not fixed in some material form excluded from copyright?

YesDesigners Guild established that 'there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work'. The 1988 Act contains an explicit requirement of fixation before any literary, dramatic or musical work may enjoy copyright protection. The main form of fixation mentioned in the 1988 Act is writing but fixation may also occur in other forms. There is no copyright in the unrecorded spoken word. Copyright does not come into existence until a recording in either tangible or visible form is made, which may include electronic storage in digital formats.

Designers Guild, 1988 Act

Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders?

NoTechnically no UK court or tribunal has ever limited the exercise of copyright under competition law. The Copyright Tribunal has jurisdiction over instances where a collecting society has refused a licence or has imposed unreasonable licensing terms (including the tariff). However, while refusal to licence and unreasonable licensing terms can clearly engage competition law, ie abuse of dominant position and anti-competitive agreements, the Copyright Tribunal does act in reference to competition law. Generally copyright is subject to the Competition Act 1998, which is modelled on Article 101 and 102 of the EC Treaty (formally Article 81 and 82). The two music collecting societies were subject to a market investigation by the Monopolies and Mergers Commission (now the Competition Commission) in 1988 and 1996 respectively. The European competition authorities have established extensive case law in relation to copyright, collecting societies and competition. Violation of Article 101 and 102 may result in compulsory licensing and the European Commission has clarified that (OJ2004/C 101/02): 'The fact that intellectual property laws grant exclusive rights of exploitation does not imply that intellectual property rights are immune from competition law intervention.' Copyright licensing agreements are subject to Article 101 if they affect trade between EU member states and if they have the 'object or effect of preventing, distorting or restricting competition', which may include absolute territorial exclusivity. Article 102 applies where a copyright owners’ or collecting societies’ refusal to supply amounts to the abuse of a dominant position. Magill established that the refusal to license might constitute an abuse of a dominant position. EU case law on anti-competitive agreements and abuse of dominant position in relation to copyright and collecting societies has never been applied by UK courts or tribunals.

EC Treaty Articles 101 and 102, Magill, Competition Act 1988

Has a court or tribunal ever limited the exercise of copyright pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?

YesIn Ashdown the Court of Appeal held that exceptions to copyright must be read in the light of the European Convention on Human Rights, ie the Human Rights Act 1998 which enacts the European Convention in the UK. The case concerned the impact of the Article 10, the right to freedom of expression, upon the fair dealing defence to claims of infringement under the 1988 Act. The Court of Appeal concluded that if freedom of expression comes into conflict with copyright and is not covered by fair dealings or permitted acts as per the 1988 Act, the 1988 Act must be applied in a manner that accommodates the right to freedom of expression, (specifically s 3 of the Human Rights Act 1998). Protection of the right to privacy (Article 8 of the European Convention) is weighed against freedom of expression (Article 10) and English courts have held that there is no inherent preference of the right to private life or the right to free expression in their interpretations.

Ashdown, ECHR, HRA, 1988 Act

Are databases of non-original material excluded from copyright?

NoThe elements of a database may be works in their own right, or simply items of information in textual, visual or audio form. The 1988 Act requires the following level of originality that a database must show (s 3A(2)): 'if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.' (note the Database Directive may protect databases that are not awarded copyright protection under this originality criteria). Therefore the copyright awarded to databases under the 1988 Act does not cover the contents of the database, but their selection or arrangement – that is the way in which the contents are structured. This structure must be the author’s own intellectual creation, not some standard method. Databases are defined by the 1988 Act (s 3A) as: 'collections of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.'

NoThe 1988 Act does not protect statutory user rights, ie permitted acts and fair dealing, from contractual over-rides. Copyright law gives protection to technical protection measures (TPMs) which are capable of preventing use under the permitted acts and fair dealing provisions. The circumvention of TPM is illegal so long as the protected work is made available by way of contractual terms.

1988 Act, ss 296 and 296ZA

Is computer software excluded from the scope of patentable subject matter?

YesApplications relating to patents in computer programmes are likely to be rejected based on existing case law. Aerotel held that computer programmes fall within Article 52 of the EPC 'exclusion provisions' and as such fall foul of step three in the four step test developed by Aerotel on patentability. The court held that 'the framers of the EPC really meant to exclude computer programs in a practical and operable form. They meant to exclude real computer programs, not just an abstract series of instructions'. Aerotel was subsequently confirmed in Nintendo.

EPC Article 52, Aerotel and Nintendo

Freedoms to access and use

By Home Users

Is there any general user right that is based on a set of balancing criteria, such as a "fair use" right?

NoThere is no fair use or private copying exceptions in UK copyright law. The 1988 Act only provides for a number of narrow permitted acts, allowing time-shifting of broadcast and backup of computer programmes in certain circumstances, as well as fair dealing in the case of non-commercial research, criticism, review and news reporting. Essentially the copying for personal use of content consumers have purchased is largely illegal under UK law: the back-up of music, film and e-books is currently illegal and so is format-shifting, eg copying music or e-books into different formats.

1988 Act, ss.29, 30, 50A and 70

Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?

In partTime-shifting of television and radio broadcasts does not constitute infringement of copyright as long as it is carried out in domestic premises for 'private and domestic use'. However, format-shifting is not permitted under the 1988 Act, although among consumers there is a widespread belief that such action is legal under UK law.

1988 Act, ss.70

Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?

NoThe 1988 Act does not provide for a fair use or private copying exception, only some limited fair dealing and permitted acts exceptions. The 1988 Act provides for a limited exception for the purpose of making a backup copy of computer programs if 'necessary' to have for the purposes of 'lawful use'. This exception was introduced with the implementation of the Software Directive and is immunised from contractual over-rides. However, it is not clear when a back-up copy is 'necessary'. According to the European Commission back-up copies are to be made 'for security reasons' and has emphasised that only one copy is permitted for this purpose. Whether the back-up copy is 'necessary' will depend on a variety of considerations, including the stability of the medium on which the original copy is stored. UK case law has established that it will rarely be necessary to make a back-up copy of a program sold on CD-ROM.

Software Directive Article 5(2), 1988 Act s.50A, Sony Computing, Sony

Can works be communicated to a limited public (for example, family and friends) without infringing copyright?

NoThe communication to the public of a work is restricted by copyright in literary, dramatic, musical and artistic works, sound recordings, films and broadcasts. This right was introduced in implementation of the InfoSoc Directive. Because UK law does not provide for a fair use or private copying exception that covers communicating copyrighted to a limited public, such as family and friends, it is an infringement of copyright.

1988 Act, InfoSoc Directive

For Education

May students copy works for private research or study?

In partThe 1988 Act provides for a fair dealing defence covering non-commercial research and private study. However, broadcast, sound recordings and films are excluded from the scope of this user right. The fair dealing defence was first developed in the 18th and 19th century and originally applied to all types of copyrighted works and covered commercial as well as non-commercial research. With the implementation of the InfoSoc Directive in UK law in 2003 the defence was narrowed to 'non-commercial' purposes. There is degree of ambiguity with regards to the distinction between commercial and non-commercial research for institutional users, for example in the context of a University professor where the research may have non-commercial as well as commercial purposes. This ambiguity does not generally affect consumer or end user research.
The 1988 Act also provides for a number of narrow permitted acts in favour of educational establishments (schools, further education colleges and universities).

1988 Act, s.29, see also ss.32-26A for education and ss.37-44A for libraries and archives

Does any such research and study provision cover distance and online education?

NoThe 1988 Act does not provide for distant and online education. Reprography (ie photocopying, printouts of electronically stored material and electronic copies) for non-commercial instructional purposes by educational establishments is subject to severe limitations. Reprographic copies of more than 1 per cent of any work in any quarter of a year are prohibited, and only permissible if licences for such copying are not available.

1988 Act, s.36

May translations of works be made for educational purposes?

No

1988 Act

May educators copy works for use in the classroom?

In partIn theory the 1988 Act makes two provisions for the benefit of educators, s.32 provides that copyright in a literary, dramatic, musical, or artistic work is not infringed if it is copied in the course of, or prepared for, instruction. Such copies may only be made by a person giving or receiving instruction and must be accompanied by a sufficient acknowledgement. However, it is also stated that such copying may not be 'done by means of a reprographic process'. Reprographic process is defined in s.178 of the 1988 Act, as a process "for making facsimile copies, or involving the use of an appliance for making multiple copies". Hence the definition is so broad that it would almost certainly apply to digital copying carried out for the purpose of instruction. In order to facilitate the use of copyrighted works in the course of instructions various licensing solutions have emerged for schools, and there are twelve collecting societies that issue licences to schools and colleges in the UK. The licensing system for school is complex as there is no standard licensing terms and licences frequently overlap. Furthermore existing licences do not cover all materials used in schools or all uses of copyright materials in schools. These gaps leave schools open to liability for copyright infringement.

1988 Act ss.32 and 178

Online

Are temporary or transient copies, incidental to a lawful use, excepted from copyright?

In partTemporary or transient copies are regarded as copyright infringement, unless they fall within the permitted act for transient copies that was amended into the 1988 Act with the implementation of the InfoSoc Directive. This exception allows temporary or transient copies of copyrighted works other than computer programmes if the act is 'an integral and essential part of a technological process the sole purpose of which is to enable a transmission of the work in a network between third parties by an intermediary.' The InfoSoc Directive states in its recitals that caches are to be understood as temporary or transient copies. However, no case law on this issue has confirmed this interpretation. Temporary or transient copies of computer programmes may be permissible under s 50C of the 1988 Act, which permits the copying of a computer programme, if “necessary for his lawful use” and if the act is not prohibited under the term or conditions. However, no case law on the issue exists.

1988 Act ss.17, 28A, and 50C, InfoSoc Directive Article 5(1)

Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network?

YesCommunications intermediaries, such as ISPs, which transmit information through a communications network are not liable copyright infringement if they did not initiate the transmission, did not select the receiver of the transmission, and did not select or modify the information contained in the transmission. The act of transmission includes the automatic, intermediate and transient storage of the information transmitted. Intermediaries which store information, such as hosts, are not liable for copyright infringement if the intermediary does not authorise the infringement or has actual knowledge of the infringement. Upon being notified the host must act expeditiously to remove or to disable access to the infringing material. The mere conduit and host principle were implemented into UK Law with the implementation of the e-Commerce Directive and the InfoSoc Directive. In relation to what constitutes the "authorisation" of infringement, and hence liability, Amstrad is most relevant. The House of Lords found that the intermediary, in this case a hardware manufacturer, had not authorised copyright infringement, as the hardware sold had both legal and illegal uses and "generally speaking, inducement, incitement or persuasion to infringe must identifiably procure a particular infringement" in order to give rise to liability as "joint infringer".

ECR ss.17 and 18, E-Commerce Directive Articles 12 and 14

Is Internet access free of ISP filtering or monitoring for potential copyright-infringements?

YesIn practice internet access is currently free of such filtering or monitoring, though there are laws which would allow such filtering and monitoring. The E-Commerce Directive states that no general obligation shall be imposed on mere conduits, such as ISPs, and hosts to monitor the information which they transmit or store, or to actively seek facts or circumstances indicating illegal activity. The Regulation of Investigatory Powers Act 2000 provides that it is a criminal offense to intentionally and without lawful authority to intercept a public postal service or a public telecommunication system. Following the implementation of the InfoSoc Directive, ss.97A and 191JA of the 1988 Act now provides for the possibility of an injunction against ISPs “where that service provider has actual knowledge of another person using their service to infringe” copyright. Ss. 17 and 18 of the Digital Economy Act 2010 allows the Secretary of State to introduce secondary legislation which would make ISPs subject to blocking injunctions, forcing them to block access to locations on the internet “from which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright”. Ss 17 and 18 are currently subject to review by Ofcom, the communications regulator, to ascertain whether these provisions would work in practice.

Is there any protection for consumers who non-commercially remix or mash up copyright works?

NoThere is no fair use, private copying or non-commercial use exceptions in UK copyright law which would allow non-commercial transformative use by consumers.

May computer software be copied for the purpose of reverse-engineering interoperable software?

YesThe 1988 Act allows for computer programmes to be decompiled if “the permitted objective” is met, ie it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program. The information obtained can not be used for any purpose other than the permitted objective. Decompilation is not allowed under this provision if the information needed to achieve the permitted objective is readily available otherwise and if the decompilation is not confined to acts necessary to achieve the permitted objective. The information obtained through decompilation may not be given to any other person, unless this is necessary to achieve the permitted objective. The 1988 Act provides that the user right to decompile computer programmes for the purpose of achieving interoperability is protected from contractual over-rides, ie it can’t be restricted by the copyright owner through provisions in the terms and conditions.

1988 Act s.50B, Software Directive

Is the incidental inclusion of a work in other material permitted?

YesCopyright is not infringed by incidental inclusion in an artistic work, sound recording, film, broadcast and cable programme.

1988 Act s.31

Is there are copyright exception for parody or satire?

NoNo, the 1988 Act does not provide for such an exception.

1988 Act

By the press

Is there a copyright exception for the news of the day?

NoIn UK law there is no exception for the 'news of the day' as defined by the Brussels version of the Berne Convention (Article 9(3)).

1988 Act

May copyright material be reproduced for the purposes of review and criticism?

YesThe 1988 Act provides for a fair dealing defence that allows for the use of a work or a performance for the purpose of criticism and review, provided the use is accompanied by a ‘sufficient acknowledgment’, and provided that the work has been made available to the public.

1988 Act s.30(1)

May quotations be used for any purpose?

In partQuotes are permitted under the relevant fair dealing defences for criticism, review and news reporting, provided that the quote is accompanies by 'sufficient acknowledgement'. Case law in relation to criticism and review provides that lengthy extracts from the original work are permitted if the purpose was purely to enable criticism. Case law has also established that the criticism must be directed to the original or another work, not the author.

1988 Act s.30, Hubbard, Ashdown

By Libraries

May libraries copy works if they cannot reasonably be obtained commercially?

No

1988 Act

May librarians copy works for users for the purpose of research or study?

In partBroadly speaking 'prescribed' libraries and archives may supply readers with a single copy of published library, dramatic or musical material for the purpose of non-commercial research and private study, provided that the reader makes a signed declaration to that effect and pays a sum not less than the cost attributable to producing the copy.

1988 Act ss.37–44, CCM, SI 1989/1212

Are libraries allowed to make preservation or archive copies of materials in their collections?

YesPrescribed library or archive may make a preservation or archive copy of an item in their permanent collection in order to preserve or replace that item, or in order to replace a lost, destroyed or damages item in the permanent collection of another prescribed library or archive. Such preservation or archive copies may only be made where it is not reasonably practicable to purchase a copy of the item in question.

1988 Act s.42

By disabled users

Is it permissible to copy or adapt work for the use of those with disabilities?

YesThe InfoSoc Directive permits 'uses for the benefit of a people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability'. The 1988 Act provides for designated bodies to make copies of broadcasts and issue them to the public with sub-titles for the deaf and hard hearing, or otherwise modified for the special needs of those physically or mentally handicapped in other ways. The 1988 Act was supplemented by the Copyright (Visually Impaired Persons) Act 2002 which allowed the making of accessible copies for the personal use of such a person, provided that he or she has lawful possession or use of a 'master copy' of the work which is accessible as a result of impairment.

InfoSoc Directive, 1988 Act s.74, VIP

In public affairs

Are laws excluded from copyright?

NoThe Crown (monarch) is entitled to copyright in every work made by the monarch or an officer or servant of the Crown in the course of his or her duties. The monarch is entitled to copyright in every Act of Parliament, Act of the Scottish Parliament, Act of the Welsh and Northern Ireland Assemblies. However, the Crown has waived its copyright for UK primary and secondary legislation, which means that although copyright is asserted, Government wishes to encourage the widespread use of the material under the condition that it is reproduced accurately and not in a misleading context, as well as being correctly acknowledged and the source and status of the material is identified.

1988 Act s.163

Are other governmental works excluded from copyright?

NoThe Crown (monarch) is entitled to copyright in every work made by the monarch or an officer or servant of the Crown in the course of his or her duties. The Crown has waived its copyright for the following works: public records; government forms (blank forms); the national curriculum material of England; Government press notices and press notices issued by the Scottish parliament; national curriculum material for Wales; acts of the Scottish Parliament, explanatory notes to acts of the Scottish Parliament and Scottish statutory instruments; government consultation documents; Scottish national curriculum documents; information on official websites unless otherwise stated; ministerial speeches and articles; and headline statistics. This means that although copyright is asserted, Government wishes to encourage the widespread use of the material under the condition that it is reproduced accurately and not in a misleading context, as well as being correctly acknowledged and the source and status of the material is identified.

1988 Act s.163

Are the results of publicly funded research required to be published under an open access license?

NoThis is not a requirement, though since 2009 some public sector information and data is made available under a Crown Copyright license, allowing commercial and non-commercial reuse. This initiative originated with the Power of Information Taskforce and the data is available at www.data.gov.uk

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?

NoAn “overt act of relinquishment” is not recognised in UK law. In law there is no instance which would allow an orphaned work to be released into the public domain.

Can public domain works be used without the need for any payment or registration of the use?

Yes

Does the law make special provision for the legal use of orphaned works?

NoThe UK does not currently provides for a orphan works solution. In early 2010 a licensing solution for orphan works was included in the Digital Economy Bill, but the provision was removed from the bill before it became law, ie the Digital Economy Act 2010.

Is parallel importation of copyright works permitted?

In partParallel imports are subject to EU law, specifically trade mark law. There is no right to control imports between EU Member States of goods already placed on the market in the European Union (EU). However, trade mark law does provide for a right to prevent importation into the EU if these goods have been marketed elsewhere, the so-called Community exhaustion of rights. The European Court of Justice found that Member States cannot introduce or maintain systems such as that of 'international exhaustion' where the first sale anywhere in the world would allow their later import into the EU.

Trade Marks Directive 1988, Silhouette

Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources?

NoThe Cabinet Office has made statements to the effect that open source will play a stronger role in the government's information and communication technology strategy, and has launched a consultation on open standards in the public sector in February 2011.

Are there national programmes or policies that specify or promote the use of open document formats?

No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?

UK law does not clearly distinguish between infringement by a person or corporate entity. Though the maximum penalty for a person infringing copyright in the course of business is £50,000.

1988 Act ss. 107 and 198 as amended by the DEA

What is the maximum penalty for copyright infringement for a corporation?

UK law does not clearly distinguish between infringement by a person or corporate entity. Though the maximum penalty for a person infringing copyright in the course of business is £50,000

1988 Act ss. 107 and 198 as amended by the DEA

Is innocent infringement of copyright treated differently by the law?

YesGenerally lack of intent and knowledge will mean that an individual or organisation is not liable for criminal copyright infringement, ie secondary copyright infringement under the 1988 Act, though ignorance is not a defence to civil copyright infringement, ie primary infringement, under the 1988 Act. However, s.97 of the 1988 Act provides for 'innocent infringers' of copyright in that the copyright owner will not be entitled to damages if it is shown that the defendant at the time of the infringement ‘did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates’.

Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes?

NoNo, the provisions in the 1988 Act apply to any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of TPMs. Manufacturing for sale or hire, importing, possession or advertisement of a circumvention device in the course of business, or proving and advertising service which enable the circumvention of TPMs, is a secondary copyright infringement, ie criminal. The fact that the device or service may have had legal uses (circumvention of TPMs is generally illegal under the 1988 Act) is not recognised as defence under the 1988 Act. The only defence provided by the 1988 Act is for the defendant to prove that he did not know, and had no reasonable ground for believing, that the device, product or component; or the service,
enabled or facilitated the circumvention of TPMs.

1988 Act ss.296ZA and 296ZB

Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights?

NoThe 1988 Act does not allow consumers or other organisations to circumvent TPMs in pursuit of their user rights, ie where the TPM prevents them from exercising their rights under the permitted acts and fair dealing defences.

1988 Act ss.296-296ZE

Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers?

NoNo, there is no requirement to disclose information about TPMs to consumers, either under the 1988 Act or consumer law.

Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds?

In partFinal or perpetual injunctions are granted to IP owners if they have proven to the court that the defendant has infringed their rights. An injunction is granted based on the facts of the case and case law indicates instances where an injunction may be refused. This includes instances where the infringement is trivial, the value of the infringement can be adequately compensated in financial terms, and where an injunction would be oppressive on the defendant. Injunctions may also be refused where the claimant is only interested in money or acts vexatious, or where the infringing act is old and there is no further treat. Where licences of IP rights are available to the defendant injunctions are not normally granted. However, the case law on injunctions and public interest is inconclusive. In Roussel-Uclaf an injunction against the sale of a heart drug, which was claimed to be patent infringement, was refused in reference to the public interest, as heart patients would be deprived of the drug. In Chiron the court confirmed that it is appropriate to consider the interest of persons who would be affected by the grant of an injunction, which may involve consideration for the public interest. But the Court held that the public interest may be better served through statutory provisions for this purpose, such as compulsory licensing, and granted the sought injunction. In Biogen, in relation to a vaccine for hepatitis B, an injunction was refused on the basis that it would have led to a loss of lives and/or damage to human health.

Roussel-Uclad, Chiron, Biogen

Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement?

NoIn 2008 a number of copyright owners and six UK ISPs, namely BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse, agreed a memorandum of understanding (MOU) which saw the ISPs send notification letters to subscribers whose IP address had been identified by the copyright owners as being used to infringed copyright through peer-to-peer filesharing. The Digital Economy Act 2010 has amended the Communications Act 2003 to the effect that ISPs need to co-operate with copyright owners in an Ofcom supervised process and notify their subscribers that copyright owners have identified their IP address as being used to infringe copyright. The Ofcom draft initial obligations code states that any subscriber who has received three or more notifications within 12 months will be put on a “copyright infringement list” which would make them subject to legal action, as well as technical measures once they are introduced. BT and TalkTalk have launched a judicial review of the Digital Economy Act 2010 a decision is expected in June 2011.

Digital Economy Act 2010, Communications Act 2003

Are criminal sanctions limited to cases of large-scale commercial counterfeiting?

NoAccording to section 107 of the 1988 Act criminal sanctions may also be applied against a person who, otherwise than in the course of a business, infringes copyright 'to such an extent as to affect prejudicially the owner of the making available right'. In 2007 test cases were brought against five users of the BitTorrent tracker OiNK in Teesside Crown Court. In December 2008 four pleaded guilty and were sentenced to community service, fines in default of prison, and had prosecution cost awarded against them. However, it appears that the defendants pleaded guilty to Section 107(1)(e), which is in relation to the distribution of physical articles. The appropriate provision for the making available of digital files is
Section 107(2A) of the 1988 Act. Section 107(1)(e) carries a maximum sentence of ten years’ imprisonment
and/or an unlimited fine, Section 107(2A) carries a lower maximum sentence of two
years’ imprisonment and/or an unlimited fine. The fifth defendant, the 17 year old Matthew Wyatt, who was alleged to have shared three albums and one
song, pleaded not guilty and in 2010 his case was dropped by the Crown Prosecution Service. His solicitor
said that Wyatt „was the victim of a cynical attempt
by the record industry to legitimise its heavy-handed tactics and dubious methods by using police resources and the public purse.”

1988 Act s.107

Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award?

YesGenerally damage for copyright infringement, as with other tort, intends to restore the victim to the position they would have been in if no wrong had been committed. Damages under UK copyright law do not aim to punish the defendant. The general measure for damages is ‘the depreciation caused by the infringement of the value of the intellectual property right as a chose in action’. With regards to commercial infringement actual damages will be commonly calculated based on lost profits to the copyright owner or on the basis of royalty, ie the licence that the defendant would have paid in normal circumstances. In rare circumstances commercial infringement will also result in damages to compensate the copyright owner for secondary losses, exemplary damages, as well as additional statutory damages, considering the flagrancy of the infringement and the benefits accrued to the defendant as result of the copyright infringement.

1988 Act s.97 and IPER s.3

Is there provision to penalise the wrongful allegation of copyright infringement?

NoNo such provision exists in UK copyright law, neither in relation to primary or secondary infringement, nor in relation to hosts who are notified of infringement. Wrongful allegation of copyright infringement may be treated as 'perverting the course of justice' in common law, where aggravating and mitigating factors include: the nature and number of offences, whether premeditated or spontaneous, degree of persistence, arrest of innocent person, any impact upon prosecution. Specific examples include: Threatening or interfering with witnesses, concealing evidence and false allegation of crime resulting in arrest of innocent person.

Is there provision to penalise the obstruction of consumers' exercise of user rights?

No

Conclusions

UK copyright law is substantially different from that of other countries. It is generally very restrictive. In law copyright is treated as 'property right' (copyright violation is treated as 'tortuous invasions of property') and there is no 'fair use' or 'private copying' exception in UK law for the benefit of consumers. UK copyright law only provides for a limited number of exceptions, known as fair dealing and permitted acts. The last time these exceptions have been comprehensively updated was in 1988 with the introduction of the Copyright, Designs and Patents Act 1988. In 2003 a limited number of exceptions, such as for the back-up of computer programmes, were introduced with the implementation of the InfoSoc Directive. The UK has to date failed to introduce fair use rights to the maximum extent possible under the InfoSoc Directive, which would allow the UK to introduce exceptions for 'private use' and parody.

The UK is a member of the EU as well as a common law country, hence copyright law draws on a variety of sources including case law. Relevant EU directives have been incorporated into UK law in a variety of ways. Where the statutory (written) law is not clear, case law is the authoritative source of law. UK copyright statutes are drafted as general principle – as a 'conduit pipe' that is relatively uncomplicated in language, but more or less indeterminate in scope, hence its interpretation, application and enforcement may be subject to change and there are a number of issues, especially digitally related, where it is not clear how existing statutory law will be interpreted by the courts. UK copyright law does not distinguish between private or corporate copyright infringement. However infringement by consumers is generally treated as a civil offense, where commercial infringement may be treated as civil or criminal offense.

The 'copyright infringement provisions' of the Digital Economy Act 2010 (sections 3 to 18) have thus far not been implemented through secondary legislation. The provisions would introduce what is known as 'graduated response', which would see internet subscribers being put on 'copyright infringement lists' and possibly disconnected from the internet, and provisions that would allows copyright owners to apply for injunctions to block websites associated with copyright infringement. Implementation has come to a halt in March 2011 when the provisions were challenged in a judicial review by the internet service providers (ISPs) BT and TalkTalk on the grounds that: they should have been notified in draft to the European Commission under the EU Technical Standards Directive (98/34/EC, as amended by 98/48 EC); they are incompatible with the EU Electronic Commerce Directive (2000/31/EC), in that they impose on mere conduits liability for transmitted information,general monitoring obligations and obligations regarding the removal or disabling of access to information; they require the processing by ISPs of traffic data for purposes that are not specifically permitted by Article 6(1) of the EU Privacy and Electronic Communications Directive (2002/58/EC), and are not necessary, appropriate and proportionate or otherwise saved by a derogation under Article 15; they imposes ‘administrative charges’ on ISPs which cannot be justified as objective under Article 12(1) of the Authorisation Directive (98/34/EC); and that they are disproportionate in their impact on ISPs, business and consumers and thus infringe the free movement of services provisions of the Treaty of the Functioning of the European Union, Article 3(4) of the E-Commerce Directive, Article 15(1) of the Privacy and Electronic Communications Directive; and the UK Human Rights Act 1998 and various instruments of EU law, giving effect to Articles 8 and/or 10 of the European Convention of Human Rights relating to privacy and freedom of expression respectively.

In November 2010 Prime Minister David Cameron announced the Independent Review of IP and Growth. Led by Prof Ian Hargreaves the review seeks to remove barriers to economic growth and innovation, and update UK copyright law for the digital age. The Government has asked Prof Hargreaves to assess the case for ‘fair use’ rights in copyright law. Prof Hargreaves is expected to announce his recommendations in early May.